Common use of Material Impairment Clause in Contracts

Material Impairment. the Borrower or any Subsidiary shall file a motion, pleading or proceeding which could reasonably be expected to result in a material impairment of the rights or interests of the Lenders or a determination by a court with respect to a motion, pleading or proceeding brought by another party which results in such a material impairment, 129 then, and in any such event, without limiting the rights and remedies available to any Lender under the Interim Borrowing Order or (when entered) the Final Borrowing Order or applicable law, the Administrative Agent may, and at the request of the Majority Lenders shall, by notice to the Borrower (with a copy to counsel for the Official Creditors’ Committee appointed in the Chapter 11 Cases and to the United States Trustee for the District of Delaware), take any or all of the following actions, without prejudice to the rights of the Administrative Agent or any Lender to enforce its claims against any Loan Party, in each case without further order of or application to the Bankruptcy Court (provided that with respect to the enforcement of Liens or other remedies with respect to the Collateral under clause (v) below, the Administrative Agent shall provide the Borrower (with a copy to counsel for the Official Creditors’ Committee in the Chapter 11 Cases and to the United States Trustee for the District of Delaware) with five (5) Business Days’ written notice prior to taking the action contemplated thereby; in any hearing after the giving of the aforementioned notice, the only issue that may be raised by any party in opposition thereto being whether, in fact, an Event of Default has occurred and is continuing): (i) declare the obligation of each Lender to make Advances (other than Letter of Credit Advances by an Issuing Bank pursuant to Section 2.03(e)(i)), the obligations of the Swingline Bank to make Swingline Advances) and of any Issuing Bank to issue Letters of Credit to be terminated, whereupon the same shall forthwith terminate, (ii) declare the Notes, all interest thereon and all other amounts payable under this Agreement and the other Loan Documents to be forthwith due and payable, whereupon the Notes, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower, (iii) by notice to each party required under the terms of any agreement in support of which a standby Letter of Credit is issued, request that all Obligations under such agreement be declared to be due and payable (iv) set off amounts in the Cash Collateral Account or any other accounts maintained with the Administrative Agent and apply such amounts to the obligations of the Borrower and the Subsidiary Guarantors hereunder and in the other Loan Documents and (v) exercise any and all remedies under the Loan Documents and under applicable law available to the Administrative Agent and the Lenders.

Material Impairment. the Borrower or any Subsidiary shall file a motion, pleading or proceeding which could reasonably be expected to result in a material impairment of the rights or interests of the Lenders or a determination by a court with respect to a motion, pleading or proceeding brought by another party which results in such a material impairment, 129 125 then, and in any such event, without limiting the rights and remedies available to any Lender under the Interim Borrowing Order or (when entered) the Final Borrowing Order or applicable law, the Administrative Agent may, and at the request of the Majority Lenders shall, by notice to the Borrower (with a copy to counsel for the Official Creditors’ Committee appointed in the Chapter 11 Cases and to the United States Trustee for the District of Delaware), take any or all of the following actions, without prejudice to the rights of the Administrative Agent or any Lender to enforce its claims against any Loan Party, in each case without further order of or application to the Bankruptcy Court (provided that with respect to the enforcement of Liens or other remedies with respect to the Collateral under clause (v) below, the Administrative Agent shall provide the Borrower (with a copy to counsel for the Official Creditors’ Committee in the Chapter 11 Cases and to the United States Trustee for the District of Delaware) with five (5) Business Days’ written notice prior to taking the action contemplated thereby; in any hearing after the giving of the aforementioned notice, the only issue that may be raised by any party in opposition thereto being whether, in fact, an Event of Default has occurred and is continuing): (i) declare the obligation of each Lender to make Advances (other than Letter of Credit Advances by an Issuing Bank pursuant to Section 2.03(e)(i)), the obligations of the Swingline Bank to make Swingline Advances) and of any Issuing Bank to issue Letters of Credit to be terminated, whereupon the same shall forthwith terminate, (ii) declare the Notes, all interest thereon and all other amounts payable under this Agreement and the other Loan Documents to be forthwith due and payable, whereupon the Notes, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower, (iii) by notice to each party required under the terms of any agreement in support of which a standby Letter of Credit is issued, request that all Obligations under such agreement be declared to be due and payable (iv) set off amounts in the Cash Collateral Account or any other accounts maintained with the Administrative Agent and apply such amounts to the obligations of the Borrower and the Subsidiary Guarantors hereunder and in the other Loan Documents and (v) exercise any and all remedies under the Loan Documents and under applicable law available to the Administrative Agent and the Lenders.

Material Impairment. Neither Borrower nor any of its Subsidiaries shall become or be a party to any contract or agreement which, in the reasonable business judgment of such Person, materially impairs such Person's ability to perform under this Agreement.” (y) Clause (b) of Section 8.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows: “(b) default in the observance or performance of any covenant set forth in Sections 6.1, 6.4, 6.5, 6.6, 6.11, 6.13, 6.14, 6.15, 6.16, 6.18, 6.19 and Section 7 or of any provision in any Loan Document dealing with the use, disposition or remittance of the proceeds of Collateral or requiring the maintenance of insurance thereon;” (z) Clause (m) of Section 8.1 of the Credit Agreement is hereby amended and restated in its entirety to read as follows: “(m) any subordination provision in any document or instrument governing Subordinated Debt, or any subordination provision in any subordination agreement that relates to any Subordinated Debt, or any subordination provision in any guaranty by Borrower or any Subsidiary of any Subordinated Debt, shall file a motioncease to be in full force and effect or enforceable; or Borrower, pleading any Subsidiary or any other Person (including the holder of any applicable Subordinated Debt) shall contest in any manner the validity, binding nature or enforceability of any such provision or breach any provision in any such subordination agreement;” (aa) New clauses (n) and (o) are hereby added to Section 8.1 of the Credit Agreement immediately following clause (m) thereof to read as follows: “(n) any court, government or Governmental Authority shall condemn, seize or otherwise appropriate, or take custody or control of, all or any material portion of the Property of Borrower and/or any one or more of its Subsidiaries; or (o) any investigation or proceeding which before or by any Governmental Authority could reasonably be expected to result in have a material impairment Material Adverse Effect.” 24 (bb) Section 9.10(a) of the Credit Agreement is hereby amended by adding the following at the end thereof: “Borrower for itself and all endorsers, guarantors and sureties and their heirs, legal representatives, successors and assigns, hereby further specifically waives any rights or interests that it may have under Section 1542 of the Lenders or California Civil Code (to the extent applicable), which provides as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR,” and further waives any similar rights under applicable laws.” (cc) Section 9.18 of the Credit Agreement is hereby amended by adding the following at the end thereof: “IN THE EVENT ANY SUCH ACTION OR PROCEEDING IS BROUGHT OR FILED IN ANY UNITED STATES FEDERAL COURT SITTING IN THE STATE OF CALIFORNIA OR IN ANY STATE COURT OF THE STATE OF CALIFORNIA, AND THE WAIVER OF JURY TRIAL SET FORTH IN SECTION 19.8 HEREOF IS DETERMINED OR HELD TO BE INEFFECTIVE OR UNENFORCEABLE, THE PARTIES HERETO AGREE THAT ALL ACTIONS OR PROCEEDINGS SHALL BE RESOLVED BY REFERENCE TO A PRIVATE JUDGE SITTING WITHOUT A JURY, PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 638, BEFORE A MUTUALLY ACCEPTABLE REFEREE OR, IF THE PARTIES HERETO CANNOT AGREE, A REFEREE SELECTED BY THE PRESIDING JUDGE OF SAN FRANCISCO COUNTY, CALIFORNIA. SUCH PROCEEDING SHALL BE CONDUCTED IN SAN FRANCISCO COUNTY, CALIFORNIA, WITH CALIFORNIA RULES OF EVIDENCE AND DISCOVERY APPLICABLE TO SUCH PROCEEDING. IN THE EVENT ANY ACTIONS OR PROCEEDINGS ARE TO BE RESOLVED BY JUDICIAL REFERENCE, ANY PARTY MAY SEEK FROM ANY COURT HAVING JURISDICTION THEREOVER ANY PREJUDGMENT ORDER, WRIT OR OTHER RELIEF AND HAVE SUCH PREJUDGMENT ORDER, WRIT OR OTHER RELIEF ENFORCED TO THE FULLEST EXTENT PERMITTED BY LAW NOTWITHSTANDING THAT ALL ACTIONS OR PROCEEDINGS ARE OTHERWISE SUBJECT TO RESOLUTION BY JUDICIAL REFERENCE.” 25 (dd) Exhibit C (Compliance Certificate) attached to the Credit Agreement is hereby amended and restated and replaced in its entirety with Exhibit C attached hereto as Exhibit A. (ee) The Schedules (other than Schedule 6.16) attached to the Credit Agreement are hereby updated with the Schedules attached hereto as Exhibit B. (ff) Schedule 6.16 attached to the Credit Agreement is hereby amended and restated with Schedule 6.16 attached hereto as Exhibit C (it being understood and agreed that (x) subject to the terms and conditions of this Amendment, any Events of Default that exist as a determination result of the Borrower failing to comply with any post-closing obligations set forth on Schedule 6.16 of the Credit Agreement as in effect prior to giving effect to the amendment and restatement of Schedule 6.16 are hereby waived by a court with respect the Bank, (y) the foregoing waiver of such Events of Default is solely limited to a motionthe specific events and the specific period(s) referenced above, pleading or proceeding brought by another party which results in such a material impairment, 129 thenas applicable, and in shall not affect any such breach of any of the other provisions of the Credit Agreement or any of the provisions of the Credit Agreement for any other period, as applicable, and shall not be deemed or otherwise construed to constitute a waiver of the subject provisions for any other event, without limiting the rights and remedies available to any Lender under the Interim Borrowing Order other period (as applicable) or (when entered) the Final Borrowing Order of any Default or applicable law, the Administrative Agent may, and at the request of the Majority Lenders shall, by notice to the Borrower (with a copy to counsel for the Official Creditors’ Committee appointed in the Chapter 11 Cases and to the United States Trustee for the District of Delaware), take any or all of the following actions, without prejudice to the rights of the Administrative Agent or any Lender to enforce its claims against any Loan Party, in each case without further order of or application to the Bankruptcy Court (provided that with respect to the enforcement of Liens or other remedies with respect to the Collateral under clause (v) below, the Administrative Agent shall provide the Borrower (with a copy to counsel for the Official Creditors’ Committee in the Chapter 11 Cases and to the United States Trustee for the District of Delaware) with five (5) Business Days’ written notice prior to taking the action contemplated thereby; in any hearing after the giving of the aforementioned notice, the only issue that may be raised by any party in opposition thereto being whether, in fact, an Event of Default has occurred and is continuing): (i) declare the obligation arising out of each Lender any other failure of any Loan Party to make Advances (other than Letter of Credit Advances by an Issuing Bank pursuant to Section 2.03(e)(i)), the obligations comply with any of the Swingline other provisions of the Credit Agreement or Loan Documents, and (z) the Bank has granted the foregoing waiver of the such Events of Default in this particular instance and in light of the facts and circumstances that presently exist, and the grant of such waiver shall not constitute a course of dealing or impair the Bank’s right to make Swingline Advances) and withhold a waiver of any Issuing Bank to issue Letters similar Defaults or Events of Credit to be terminated, whereupon the same shall forthwith terminate, (ii) declare the Notes, all interest thereon and all other amounts payable under this Agreement and the other Loan Documents to be forthwith due and payable, whereupon the Notes, all such interest and all such amounts shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower, (iii) by notice to each party required under the terms of any agreement in support of which a standby Letter of Credit is issued, request that all Obligations under such agreement be declared to be due and payable (iv) set off amounts Default in the Cash Collateral Account or any other accounts maintained with the Administrative Agent and apply such amounts to the obligations of the Borrower and the Subsidiary Guarantors hereunder and in the other Loan Documents and (v) exercise any and all remedies under the Loan Documents and under applicable law available to the Administrative Agent and the Lendersfuture). 3.